Friday, April 22, 2016

Editor’s note: As one of the 154 kānaka maoli who agreed to participate in the state-sponsored, Naʻi Aupuni-initiated Native Hawaiian ʻAha, Kaʻiulani Milham had a front row seat at the month-long proceedings. What follows is the fifth and final installment of a multi-part, first-hand account that highlights various and consistent affronts to democratic processes that ruled during the ʻAha proceedings. Read part I, part II, part III and part IV_____________________________________________________________ Around 1:30 p.m. on the afternoon of February 25, the ʻAha participants received the final “final draft” of the newly drafted constitution.Claire Hughes, a silver-haired Oʻahu kupuna, now stood before the mic to move to adopt the “Native Hawaiian Constitution.” As if on cue, the motion to adopt appeared on the screen at the front of the room.Protest erupted immediately. The idea of an up-or-down vote on a constitution that had just arrived didn’t sit well with many participants.Considering the momentous decision to be made, I motioned to table the matter until the next day. This could become a nation’s founding document; the least we could do was take another day to consider the path before us.Poka Laenui, an attorney and elder statesmen of the sovereignty movement, shared my concerns.“I received mine about a minute ago,” said Laenui. “To move to consideration of the document at the present time, I think, is unwise, inappropriate and a failure to meet our fiduciary obligation to our people.”Bronson Kaʻahui, a highly vocal independence critic, supported the motion as well, noting that more time was needed for debating the “substantive issues” and that committees were told no amendments would be allowed.“I have a huge problem with that and I cannot in good conscience move straight to a roll call vote at this time,” said Kaʻahui.But it wasn’t just the one constitution that participants wanted to review.Jimmy Wong, a former state legislator, spoke in favor of tabling to allow time to consider the international committee’s constitutions (see part IV) as well.“I would like to have time ... to take a look at the two constitutions and compare it with the constitution that’s before us now so that we can make a more intelligent decision as to what constitution may be the best constitution for our constituency,” said Wong.Federal recognition advocates strongly objected to this motion.“The continued undermining of this constitution has been going on since February 1,” said Sarah Nakihei, of Maui. “The international committee has been trying to undermine our hard work in the ʻAha…”Amidst a chorus of boos, ʻAha chair Brendon Lee cut Nakihei short.On the other side of the debate, Karen Awana, a former state representative, was skeptical of the rush to adopt.“It was obvious that this motion was premeditated,” said Awana, referring to how the motion was simultaneously displayed on the screen. “I think we can wait at least one day to ensure that decisions that we make today or tomorrow will be educated decisions.”Laenui asked whether the final draft constitution might be considered “ad seriatim”—with its provisions considered one by one rather than all-or-nothing. Debate on adopting the constitution section-by-section fell generally along party lines and when the motion came to a vote, it failed by a slim margin, 59–52.

The Debate

Returning to motion to table, Lee explained that according to Robert’s Rules, the limit for debate was 10 minutes per person.Having soon used his time on various concerns, Laenui asked for a five-minute increase, but was quickly opposed by Chad Awai —the same federal recognition supporter who had moved to cut independence advocates presentation time from 15 minutes down to 10 (see part I)—who now moved to cut the 10 minute limit to just five.The move brought applause from federal recognition supporters, as did the comments of Nāʻālehu Anthony, the former Roll Commissioner, who scolded those wanting to discuss the constitution before adopting it. “To bring it to the floor now means they did not do their due diligence that was required of them in committee,” he saidBut Kimo Stowell, of Oʻahu, questioned the motives behind the rush to adopt.“There is a resistance to the review of these articles. And why is that?” Stowell asked. “The reason why, is because half the group is completely uninterested in the content and whether or not it’s going to work, because it’s fitting into a very deliberate scheme and that deliberate scheme is about eliminating our rights to sovereignty for the sake of the American government.”Like her son, Nāʻālehu Anthony, University of Hawaiʻi (UH) at Mānoa Hawaiian Studies professor Lilikala Kameʻelehiwa scolded those wanting more time. “Everybody who wanted a say could have gone to the drafting committee and done the hard work there,” she said.For Kameʻelehiwa, simply including language for “the pursuit of independence” in the preamble had felt like a sacrifice and, like a child holding onto a grudge, she chose to suddenly insert that gripe into the discussion as though cutting the limit to five minutes was somehow equivalent or just.“I had to give up federal recognition in order to get independence in [the preamble] … and now you guys are accusing us of railroading something? No. Five minutes each,” she said flatly.Awana fired back with a passionate rebuke. “It’s a shame when we as Native Hawaiians will deny ourselves the right to truth. And it is also a shame when we will deny…”Interrupted by groans and complaints from the federal recognition camp, Awana was forced to raise her voice above the din, calling out, “Hello! I’m speaking!” until order was restored.“It is also a shame when we will deny other Hawaiian people information that may be important when we have a very important decision to make,” she continued. “And to just blow people off and not allow them to share their manaʻo, which will be extremely beneficial to this entire room, to generations after us and the hundreds of thousands of Hawaiians out there…”As Awana continued, her voice became choked with tears. “I am just so heartbroken to see … the meanness and the level of uninterestedness. We need to understand and listen! All you have to do is open your eyes, ears, heart and soul. This is what I ask of you folks; to be civil to each other.”As usual, when the vote came it fell along the party lines, with federal recognition supporters favoring the five-minute limit over the wishes of the independence camp for more time.Now the debate on tabling resumed. Jacob Aki, of the Makalehua hui of “young Hawaiians” (see part I)—took the opportunity to scold the mākua and kūpuna of the international committee.“The international committee did not give [their documents to] us until today, and I feel that was poor planning on their part,” said Aki. At 21, Aki was the ʻAha’s youngest participant. “They should have planned better and gave it to us early in the week, like everything we did.”Williamson Chang, senior professor of UH Mānoa’s Richardson Law School, was a natural counterpoint to Aki. “The last time a constitution was proposed to the Native Hawaiian people was in 1893,” Chang began. But he too was soon interrupted with objections and side conversations that forced chair Lee to shout for order.“How many years has it been since we have had a chance to look at a constitution?” Chang continued finally. “Can you name one country, one nation, which would say, ʻwe gotta vote it today …because it’s the last day’? … Is it the last day? Couldn’t this body, in control of its own processes, extend the time of the ‘Aha?”“No, we cannot,” Lee quickly interjected. But Chang’s statement once again pointed to the predetermined nature of the whole ‘Aha“Are you willing to go back to the people and say, ‘we voted on this—after not reading it—in three hours?’” Chang challenged.And it was true: If developing the best product possible was really the goal of the convention and, at the planned ending of the process, that product had clearly not been agreed upon, wouldn’t the logical move be to extend the process and continue working? Originally, the ‘Aha was meant to last for eight weeks, not four. And that was with only 40 different viewpoints to incorporate. Now we had almost four times the number of participants and a “final draft” that was anything but final. As if on cue, Curtis Kekoa, an Oʻahu attorney, stepped forward and warned that adopting a constitution without due diligence and debate would foster, at the very least, an impression of impropriety. “If I were a third party looking at what we’re doing here today, I would look at this body as being corrupt,” he said. The comment brought jeers from the federal recognition supporters and, although Lee called for order, the charge hovered in the room like a dark cloud.Despite the reasonable concerns voiced by the likes of Chang and Kekoa, when Lee at last called for a vote the room was again split along factional lines with the majority voting against.

Leeʻs Leadership

Lunakanawai Hauanio, chair of the international committee, returned to the mic to press for the adoption of his committee’s report (the revised AHO constitutions and two declarations by Professor Chang, see part IV) one last time. Lee overruled his motion, on the grounds that the assembly had already moved to adopt the “Native Hawaiian Constitution” presented by the drafting committee.Though it may have been a valid ruling at the time, after the matter of adopting the constitution had been settled, Lee would once again rule a different participant “out of order” when she subsequently moved to adopt the international committee documents as well.Objections to Lee’s application of the rules did not come only from independence advocates. Seeking clarification about the ability to amend the constitution, Hanalei Aipoalani, of Oʻahu, questioned Lee’s handling of the ʻaha process.“The motion will not allow for amendments,” said Lee. “Amendments were to be made in the committees up until yesterday.”“Why not?” Aipoalani demanded. “Why is that the process?”“That was made clear…” Lee began.“That was not made clear. That was not made clear,” insisted Aipoalani. “If we don’t understand what’s going on—we have no set schedule, we have no set process—I cannot have the utmost confidence and trust in my leadership.”Lee assured Aipoalani that the final draft included a provision for the constitution to be “fully amendable for the first 10 years after the government stands up,” and that the ʻAha leadership had solicited suggested amendments from the committees “so they can be put into the ʻAhaʻs record to serve as a “first order of business” for the new government.But, reading that provision from a copy of the document, Lee suddenly stopped as he realized the mistake that had been made. The provision did not provide for amendments within the first 10 years at all. It was, in fact, a provision for a constitutional convention 10 years after adoption.“The chair stands corrected. It’s not in there and it was supposed to be,” said Lee.After a brief recess, Lee had developed a convoluted explanation for the mistake. Although his recommendation was that amendments be allowed during the first 10 years, “there is no time certain on it, so it is fully amendable up until such time as the body stands up and amends it to say that goes away, and it would just be a constitutional convention.”Williamson Chang was next to question Lee’s slipshod procedure.“Is it or is it not correct that the amendments to the constitution were supposed to be available and finished by yesterday?” asked Chang.“That is correct,” Lee acknowledged.“They were amended today, is that correct?”“Nnno,” Lee stammered, beginning to protest, but Chang cut in. “Yes they were! There were two provisions that dealt with sovereign immunity. Now there’s one.”Lee rationalized the difference as “legal issues,” but Chang wasn’t buying it. “That’s an amendment,” he insisted.“That was non-substantive,” Lee argued.“Non-substantive?” asked Chang, noting that the constitution went from having two “sovereign immunity” clauses to one.“To a lawyer [that] means two chances at barring a lawsuit against the king or the government. And [if it was non-substantive] why was it therefore necessary to reprint this after this morning’s final version was disseminated?” asked Chang. “You’re calling them ʻtechnical amendments?’“That’s what your chair was told, yes,” explained Lee.“An amendment is an amendment,” said Chang. “It’s the constitution. It’s the highest law of the land. There’s no such thing as a technical amendment.”Around 5 p.m. Chang requested that the ʻAha adjourn.But those eager to adopt the constitution were unwilling to quit. Had Kaui Trainer not come forward to correct the chair, quoting from Robert’s Rules, that a motion to recess is non-debatable, the debate could have gone on for another hour.

The Final Hours

Debate over adopting the constitution resumed first thing Friday morning and continued into the afternoon. At last, after nearly five hours, the vote began.One by one, participants came forward expressing apprehension, jubilation and, at times, a mixture of both. Though many expressed reservations, the final tally came down to 88 in favor, 30 opposed and one abstention. Other participants had declined to make themselves present at the vote, distancing themselves—some for fear of being sued.Announcing the adoption of the document by the ʻAha as though the required ratification was a mere formality, Lee declared, “We have a constitution.”It was done. As we filtered outside for public relations group photos on the luxuriant, Royal Hawaiian Golf Club lawn, I was relieved. We smiled for the cameras and held hands, worried about the bags under our eyes and the weight gained from sitting for an entire month fed on starchy, bland cafeteria fare. We hugged one another, even the people who had sometimes appalled us with their rhetoric. And then we drove away.Some, no doubt, were enthralled by having had a hand in the making of a constitution. Zuri Aki, in his Civil Beat column [link] just two days later, proclaimed the newly-minted document as “the first at this high level of prestige.”Others were equally self-congratulatory. In the ʻAha 2016 Facebook group, Hanalei Aipoalani went so far as to say, “We are the founding mothers and fathers.”Still others are busily rewriting history, reminiscent of those who whitewashed the annexation of Hawaiʻi by Joint Resolution, turning that illegal act into one based on a conveniently absent, but nonetheless lawful, treaty.Though we had fought federal recognition proponents tooth and nail just to preserve the “pursuit of independence” language in the preamble, Jade Danner, in a post to the ʻAha 2016 Facebook group, reframed the controversial provision claiming that it had been her federal recognition bedfellows who had fought the hardest for it all along.I can tell you that the language in the preamble regarding reserving the right to pursue independence was advocated most strongly by people who want federal recognition, and they did it, knowing that it might jeopardize that option remaining on the table.Despite the frustration and desperation of the ʻAha fight, I remain hopeful. If not for the document birthed from this Naʻi Aupuni process, our people may not have risen, as they now have, to oppose the process and its result and to begin the work of building a nation from the ground up. Despite the efforts to contain and overrule the independence cause, today it is stronger than ever.